BILL NUMBER: AB 1376 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Roger Hernández
FEBRUARY 22, 2013
An act to amend Sections 11018 and 11435.30 of, to repeal and add
Section 11435.35 of, and to repeal Sections 11435.40, 11435.45,
11435.50, and 11435.55 of, the Government Code, and to amend Sections
4600 and 4620 of the Labor Code, relating to state government.
LEGISLATIVE COUNSEL'S DIGEST
AB 1376, as introduced, Roger Hernández. Administrative
adjudication: language assistance.
Existing law requires certain state agencies to provide language
assistance in adjudicative proceedings. Existing law requires the
State Personnel Board to establish, maintain, administer, and publish
annually for these purposes an updated list of certified
administrative hearing interpreters and medical examination
interpreters it has determined meet certain minimum standards.
Existing law requires the Department of Human Resources to designate
the languages for which certification shall be established and to
establish and charge fees for applications to take interpreter
examinations and for renewal of certifications. Existing law
authorizes the Department of Human Resources to remove the name of a
person from the list of certified interpreters if any specified
conditions occurs. Existing law authorizes a hearing agency to
provisionally qualify and use another interpreter if a certified
interpreter, as specified, cannot be present at the hearing.
This bill would instead require each agency subject to the
language assistance requirements, as specified, to determine the
qualifications of interpreters in its proceedings, and would allow
the Administrative Director of the Division of Workers' Compensation
to establish, maintain, administer, and publish annually an updated
list of certified administrative hearing interpreters, as specified.
This bill would require a reasonable fee to be collected from each
interpreter seeking certification, to cover the reasonable regulatory
costs of administering the program. The bill would repeal the above
mentioned provisions related to the Department of Human Resources and
the provision that authorizes a hearing agency to provisionally
qualify and use another interpreter.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11018 of the Government Code is amended to
read:
11018. Every Each state agency
which that is authorized by any law to
conduct administrative hearings but is not subject to Chapter 5
(commencing with Section 11500) shall nonetheless comply with
Sections 11435.20 , 11435.25, and 11435.55
and 11435.25 relative to the furnishing of language assistance
at the hearing.
SEC. 2. Section 11435.30 of the Government Code is amended to
read:
11435.30. (a) The State Personnel Board shall establish,
maintain, administer, and publish annually an updated list of
certified administrative hearing interpreters it has determined meet
the minimum standards in interpreting skills and linguistic abilities
in languages designated pursuant to Section 11435.40. Any
interpreter so listed may be examined by each employing agency to
determine the interpreter's knowledge of the employing agency's
technical program terminology and procedures.
(b) Court interpreters certified pursuant to Section 68562, and
interpreters listed on the State Personnel Board's recommended lists
of court and administrative hearing interpreters prior to July 1,
1993, shall be deemed certified for purposes of this section.
(c) (1) In addition to the certification procedure provided
pursuant to subdivision (a), the Administrative Director of the
Division of Workers' Compensation may establish, maintain,
administer, and publish annually an updated list of certified
administrative hearing interpreters who, based on testing by an
independent organization designated by the administrative director,
have been determined to meet the minimum standards in interpreting
skills and linguistic abilities in languages designated pursuant to
Section 11435.40, for purposes of administrative hearings conducted
pursuant to proceedings of the Workers' Compensation Appeals Board.
The independent testing organization shall have no financial interest
in the training of interpreters or in the employment of interpreters
for administrative hearings.
11435.30. (a) The Administrative Director of the
Division of Workers' Compensation may establish, maintain,
administer, and publish annually an updated list of certified
administrative hearing interpreters who, based on testing by an
independent organization designated by the administrative director,
have been determined to meet the minimum standards in interpreting
skills and linguistic abilities necessary for purposes of
administrative hearings conducted pursuant to proceedings of the
Workers' Compensation Appeals Board. The independent testing
organization shall not have any financial interest in the training of
interpreters or in the employment of interpreters for administrative
hearings.
(2) (A) A fee, as determined by the administrative director, shall
be collected from each interpreter seeking certification. The fee
shall not exceed the reasonable regulatory costs of administering the
testing and certification program and of publishing the list of
certified administrative hearing interpreters on the Division of
Workers' Compensation' Internet Web site.
(b) The Administrative Director of the Division of Workers'
Compensation may establish, maintain, administer, and publish
annually an updated list of certified medical examination
interpreters who, based on testing by an independent organization
designated by the administrative director, have been determined to
meet the minimum standards in interpreting skills and linguistic
abilities in languages for purposes of medical examinations conducted
pursuant to proceedings of the Workers' Compensation Appeals Board,
and medical examinations conducted pursuant to Division 4 (commencing
with Section 3200) of the Labor Code. The independent testing
organization shall not have any financial interest in the training of
interpreters or in the employment of interpreters for medical
examinations.
(c) A fee, as determined by the administrative director, shall be
collected from each interpreter seeking certification. The fee shall
not exceed the reasonable regulatory costs of administering the
testing and certification program and of publishing the list of
certified administrative hearing interpreters or certified medical
examination interpreters on the Division of Workers' Compensation
Internet Web site.
(B)
(d) The Legislature finds and declares that the
services described in this section are of such a special and unique
nature that they may be contracted out pursuant to paragraph (3) of
subdivision (b) of Section 19130. The Legislature further finds and
declares that the services described in this section are a new state
function pursuant to paragraph (2) of subdivision (b) of Section
19130.
SEC. 3. Section 11435.35 of the Government Code is repealed.
11435.35. (a) The State Personnel Board shall establish,
maintain, administer, and publish annually, an updated list of
certified medical examination interpreters it has determined meet the
minimum standards in interpreting skills and linguistic abilities in
languages designated pursuant to Section 11435.40.
(b) Court interpreters certified pursuant to Section 68562 and
administrative hearing interpreters certified pursuant to Section
11435.30 shall be deemed certified for purposes of this section.
(c) (1) In addition to the certification procedure provided
pursuant to subdivision (a), the Administrative Director of the
Division of Workers' Compensation may establish, maintain,
administer, and publish annually an updated list of certified medical
examination interpreters who, based on testing by an independent
organization designated by the administrative director, have been
determined to meet the minimum standards in interpreting skills and
linguistic abilities in languages designated pursuant to Section
11435.40, for purposes of medical examinations conducted pursuant to
proceedings of the Workers' Compensation Appeals Board, and medical
examinations conducted pursuant to Division 4 (commencing with
Section 3200) of the Labor Code. The independent testing organization
shall have no financial interest in the training of interpreters or
in the employment of interpreters for administrative hearings.
(2) (A) A fee, as determined by the administrative director, shall
be collected from each interpreter seeking certification. The fee
shall not exceed the reasonable regulatory costs of administering the
testing and certification program and of publishing the list of
certified medical examination interpreters on the Division of Workers'
Compensation's Internet Web site.
(B) The Legislature finds and declares that the services
described in this section are of such a special and unique nature
that they may be contracted out pursuant to paragraph (3) of
subdivision (b) of Section 19130. The Legislature further finds and
declares that the services described in this section are a new state
function pursuant to paragraph (2) of subdivision (b) of Section
19130.
SEC. 4. Section 11435.35 is added to the Government Code, to read:
11435.35. (a) Each agency subject to the language assistance
requirements of this article shall determine the qualifications of
interpreters in its proceedings. The agency may require interpreters
to take an examination, demonstrate certification by an independent
organization, or take an oath that any interpretation provided is
accurate and complete and that the interpreter is without bias in the
proceeding. For interpreters used in administrative hearings, the
presiding officer may verify the interpreter's qualifications and
administer oaths on the record of the proceeding.
(b) The Legislature finds and declares that the services described
in this section may be contracted out pursuant to paragraphs (3) and
(10) of subdivision (b) of Section 19130 as either highly
specialized and unique or urgent, temporary or occasional, or both.
SEC. 5. Section 11435.40 of the Government Code is repealed.
11435.40. (a) The Department of Human Resources shall designate
the languages for which certification shall be established under
Sections 11435.30 and 11435.35. The languages designated shall
include, but not be limited to, Spanish, Tagalog, Arabic, Cantonese,
Japanese, Korean, Portuguese, and Vietnamese until the Department of
Human Resources finds that there is an insufficient need for
interpreting assistance in these languages.
(b) The language designations shall be based on the following:
(1) The language needs of non-English-speaking persons appearing
before the administrative agencies, as determined by consultation
with the agencies.
(2) The cost of developing a language examination.
(3) The availability of experts needed to develop a language
examination.
(4) Other information the department deems relevant.
SEC. 6. Section 11435.45 of the Government Code is repealed.
11435.45. (a) The Department of Human Resources shall establish
and charge fees for applications to take interpreter examinations and
for renewal of certifications. The purpose of these fees is to cover
the annual projected costs of carrying out this article. The fees
may be adjusted each fiscal year by a percent that is equal to or
less than the percent change in the California Necessities Index
prepared by the Commission on State Finance.
(b) Each certified administrative hearing interpreter and each
certified medical examination interpreter shall pay a fee, due on
July 1 of each year, for the renewal of the certification. Court
interpreters certified under Section 68562 shall not pay any fees
required by this section.
(c) If the amount of money collected in fees is not sufficient to
cover the costs of carrying out this article, the department shall
charge and be reimbursed a pro rata share of the additional costs by
the state agencies that conduct administrative hearings.
SEC. 7. Section 11435.50 of the Government Code is repealed.
11435.50. The Department of Human Resources may remove the name
of a person from the list of certified interpreters if any of the
following conditions occurs:
(a) The person is deceased.
(b) The person notifies the department that the person is
unavailable for work.
(c) The person does not submit a renewal fee as required by
Section 11435.45.
SEC. 8. Section 11435.55 of the Government Code is repealed.
11435.55. (a) An interpreter used in a hearing shall be certified
pursuant to Section 11435.30. However, if an interpreter certified
pursuant to Section 11435.30 cannot be present at the hearing, the
hearing agency shall have discretionary authority to provisionally
qualify and use another interpreter.
(b) An interpreter used in a medical examination shall be
certified pursuant to Section 11435.35. However, if an interpreter
certified pursuant to Section 11435.35 cannot be present at the
medical examination, the physician provisionally may use another
interpreter if that fact is noted in the record of the medical
evaluation.
SEC. 9. Section 4600 of the Labor Code is amended to read:
4600. (a) Medical, surgical, chiropractic, acupuncture, and
hospital treatment, including nursing, medicines, medical and
surgical supplies, crutches, and apparatuses, including orthotic and
prosthetic devices and services, that is reasonably required to cure
or relieve the injured worker from the effects of his or her injury
shall be provided by the employer. In the case of his or her neglect
or refusal reasonably to do so, the employer is liable for the
reasonable expense incurred by or on behalf of the employee in
providing treatment.
(b) As used in this division and notwithstanding any other
provision of law, medical treatment that is
reasonably required to cure or relieve the injured worker from the
effects of his or her injury means treatment that is based upon the
guidelines adopted by the administrative director pursuant to Section
5307.27.
(c) Unless the employer or the employer's insurer has established
or contracted with a medical provider network as provided for in
Section 4616, after 30 days from the date the injury is reported, the
employee may be treated by a physician of his or her own choice or
at a facility of his or her own choice within a reasonable geographic
area. A chiropractor shall not be a treating physician after the
employee has received the maximum number of chiropractic visits
allowed by subdivision (d) of Section 4604.5.
(d) (1) If an employee has notified his or her employer in writing
prior to the date of injury that he or she has a personal physician,
the employee shall have the right to be treated by that physician
from the date of injury if the employee has health care coverage for
nonoccupational injuries or illnesses on the date of injury in a
plan, policy, or fund as described in subdivisions (b), (c), and (d)
of Section 4616.7.
(2) For purposes of paragraph (1), a personal physician shall meet
all of the following conditions:
(A) Be the employee's regular physician and surgeon, licensed
pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of
the Business and Professions Code.
(B) Be the employee's primary care physician and has previously
directed the medical treatment of the employee, and who retains the
employee's medical records, including his or her medical history.
"Personal physician" includes a medical group, if the medical group
is a single corporation or partnership composed of licensed doctors
of medicine or osteopathy, which operates an integrated
multispecialty medical group providing comprehensive medical services
predominantly for nonoccupational illnesses and injuries.
(C) The physician agrees to be predesignated.
(3) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a health care service
plan licensed pursuant to Chapter 2.2 (commencing with Section 1340)
of Division 2 of the Health and Safety Code, and the employer is
notified pursuant to paragraph (1), all medical treatment,
utilization review of medical treatment, access to medical treatment,
and other medical treatment issues shall be governed by Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code. Disputes regarding the provision of medical treatment shall be
resolved pursuant to Article 5.55 (commencing with Section 1374.30)
of Chapter 2.2 of Division 2 of the Health and Safety Code.
(4) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a group health
insurance policy as described in Section 4616.7, all medical
treatment, utilization review of medical treatment, access to medical
treatment, and other medical treatment issues shall be governed by
the applicable provisions of the Insurance Code.
(5) The insurer may require prior authorization of any
nonemergency treatment or diagnostic service and may conduct
reasonably necessary utilization review pursuant to Section 4610.
(6) An employee shall be entitled to all medically appropriate
referrals by the personal physician to other physicians or medical
providers within the nonoccupational health care plan. An employee
shall be entitled to treatment by physicians or other medical
providers outside of the nonoccupational health care plan pursuant to
standards established in Article 5 (commencing with Section 1367) of
Chapter 2.2 of Division 2 of the Health and Safety Code.
(e) (1) When at the request of the employer, the employer's
insurer, the administrative director, the appeals board, or a workers'
compensation administrative law judge, the employee submits to
examination by a physician, he or she shall be entitled to receive,
in addition to all other benefits herein provided, all reasonable
expenses of transportation, meals, and lodging incident to reporting
for the examination, together with one day of temporary disability
indemnity for each day of wages lost in submitting to the
examination.
(2) Regardless of the date of injury, "reasonable expenses of
transportation" includes mileage fees from the employee's home to the
place of the examination and back at the rate of twenty-one cents
($0.21) a mile or the mileage rate adopted by the Director of Human
Resources pursuant to Section 19820 of the Government Code, whichever
is higher, plus any bridge tolls. The mileage and tolls shall be
paid to the employee at the time he or she is given notification of
the time and place of the examination.
(f) When at the request of the employer, the employer's insurer,
the administrative director, the appeals board, or a workers'
compensation administrative law judge, an employee submits to
examination by a physician and the employee does not proficiently
speak or understand the English language, he or she shall be entitled
to the services of a qualified interpreter in accordance with
conditions and a fee schedule prescribed by the administrative
director. These services shall be provided by the employer. For
purposes of this section, "qualified interpreter" means a language
interpreter certified, or deemed certified, pursuant to Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of, or Section 68566 of, the Government Code.
(g) If the injured employee cannot effectively communicate with
his or her treating physician because he or she cannot proficiently
speak or understand the English language, the injured employee is
entitled to the services of a qualified interpreter during medical
treatment appointments. To be a qualified interpreter for purposes of
medical treatment appointments, an interpreter is not required to
meet the requirements of subdivision (f), but shall meet any
requirements established by rule by the administrative director that
are substantially similar to the requirements set forth in Section
1367.04 of the Health and Safety Code. The administrative director
shall adopt a fee schedule for qualified interpreter fees in
accordance with this section. Upon request of the injured employee,
the employer or insurance carrier shall pay for interpreter services.
An employer shall not be required to pay for the services of an
interpreter who is not certified or is provisionally certified by the
person conducting the medical treatment or examination unless either
the employer consents in advance to the selection of the individual
who provides the interpreting service or the injured worker requires
interpreting service in a language other than the languages
designated provided pursuant to Section
11435.40 11435.30 of the Government Code.
(h) Home health care services shall be provided as medical
treatment only if reasonably required to cure or relieve the injured
employee from the effects of his or her injury and prescribed by a
physician and surgeon licensed pursuant to Chapter 5 (commencing with
Section 2000) of Division 2 of the Business and Professions Code,
and subject to Section 5307.1 or 5703.8. The employer shall not be
liable for home health care services that are provided more than 14
days prior to the date of the employer's receipt of the physician's
prescription.
SEC. 10. Section 4620 of the Labor Code is amended to read:
4620. (a) For purposes of this article, a medical-legal expense
means any costs and expenses incurred by or on behalf of any party,
the administrative director, or the board, which expenses may include
X-rays, laboratory fees, other diagnostic tests, medical reports,
medical records, medical testimony, and, as needed, interpreter's
fees by a certified interpreter pursuant to Article 8 (commencing
with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of
Title 2 of, or Section 68566 of, the Government Code, for the purpose
of proving or disproving a contested claim.
(b) A contested claim exists when the employer knows or reasonably
should know that the employee is claiming entitlement to any benefit
arising out of a claimed industrial injury and one of the following
conditions exists:
(1) The employer rejects liability for a claimed benefit.
(2) The employer fails to accept liability for benefits after the
expiration of a reasonable period of time within which to decide if
it will contest the claim.
(3) The employer fails to respond to a demand for payment of
benefits after the expiration of any time period fixed by statute for
the payment of indemnity.
(c) Costs of medical evaluations, diagnostic tests, and
interpreters incidental to the production of a medical report do not
constitute medical-legal expenses unless the medical report is
capable of proving or disproving a disputed medical fact, the
determination of which is essential to an adjudication of the
employee's claim for benefits. In determining whether a report meets
the requirements of this subdivision, a judge shall give full
consideration to the substance as well as the form of the report, as
required by applicable statutes and regulations.
(d) If the injured employee cannot effectively communicate with an
examining physician because he or she cannot proficiently speak or
understand the English language, the injured employee is entitled to
the services of a qualified interpreter during the medical
examination. Upon request of the injured employee, the employer or
insurance carrier shall pay the costs of the interpreter services, as
set forth in the fee schedule adopted by the administrative director
pursuant to Section 5811. An employer shall not be required to pay
for the services of an interpreter who is provisionally certified
unless either the employer consents in advance to the selection of
the individual who provides the interpreting service or the injured
worker requires interpreting service in a language other than the
languages designated provided pursuant
to Section 11435.40 11435.30 of the
Government Code.